Louisiana v. Mississippi

PETITIONER:Louisiana
RESPONDENT:Mississippi
LOCATION:Former Spot Club Location

DOCKET NO.: 14 ORIG
DECIDED BY: Warren Court (1965-1967)
LOWER COURT:

CITATION: 384 US 24 (1966)
ARGUED: Nov 16, 1965 / Dec 10, 1963
DECIDED: Apr 18, 1966

ADVOCATES:
Edward M. Carmouche – Assistant Attorney General of Louisiana, for the plaintiff
John L. Madden – Assistant Attorney General of Louisiana, for the plaintiff
Landman Teller – Special Assistant to the Attorney General, for the defendants
Martin R. McLendon – Assistant Attorney General of Mississippi, for the defendants

Facts of the case

Question

  • Oral Argument – December 10, 1963 (Part 1)
  • Oral Argument – December 10, 1963 (Part 2)
  • Audio Transcription for Oral Argument – December 10, 1963 (Part 1) in Louisiana v. Mississippi
    Audio Transcription for Oral Argument – December 10, 1963 (Part 2) in Louisiana v. Mississippi

    Audio Transcription for Oral Argument – November 16, 1965 in Louisiana v. Mississippi

    Earl Warren:

    Number 14, Original, State of Louisiana, Plaintiff, versus the State of Mississippi.

    Mr. Madden, you may proceed with your arguments.

    John L. Madden:

    Mr. Chief Justice and Associate Justices of this Honorable Court.

    A first few words that I shall say will — I will — ameliorating to this Court, because I said substantially the same thing I gave before standing before this Court when I had the privilege of doing so I introduced the argument in this manner, my recollection of how we came into this Court and why.

    And we have a new justice on the Supreme Court in the meantime.

    And I’ll just simply say that this controversy had its inception in a suit that was filed by certain Mississippi landowners and a District Court of the United States in Mississippi.

    It was directed solely against Humble Oil and Refining Company, Louisiana’s mineral lessee.

    The Mississippi landowners alleged in their complaint, as they were the owners of an oil well which was drilled by Carter Oil Company which merged with Humble Oil on December the 1st, 1959.

    Under its lease from the drill site in Louisiana to an oil producing zone and bottomed in the bed of the Mississippi River.

    Plaintiffs, Mr. Carrols and Carrols (ph) family claimed that the oil well was producing within the State of Mississippi from lands which they had come to own by a reason now were shift in the main channel of the Mississippi River.

    The title to Louisiana’s property having been attacked in that suit, Louisiana filed a motion, this Honorable Court believed to file a complaint and all that the court did before this Court, the only tribunal that could pass on all of the issues.

    And we made as defendants, the State of Mississippi, the Mississippi landowners now lessees on them giving everyone the right to come in and be heard subject to granting the pleading granted by this Court.

    The United States district judge issued an order staying the proceedings in the Federal District Court with all of the necessary parties both public and private being before this Court after leave was granted to file a complaint, this Court in our — in its order that we interpreted it, accept the jurisdiction for all purposes.

    The Special Master then conducted hearings, took evidence and heard all authorities, both private and public wishing to be heard.

    He has filed his report and we are here on exceptions to that report.

    It is my purpose to state the facts in this original action, particularly all of the controlling facts on which Louisiana predicates its exceptions to the Special Master report, the effects in this case dominate because they are unprecedented in boundary actions heretofore decided by this Honorable Court.

    My Associate Counsel, Mr. Carmouche shall follow me to discuss the existing jurisprudence and the legal phases of the Court.

    It is appropriate to say at the start that Louisiana concurs fully in all of the truly important parts of the Special Master’s findings of fact.

    In his illuminating résumé of facts highlighting his report, the Special Master lightens the Mississippi River to assert between Carlyle, Illinois and the Gulf of Mexico, referring of course to the continuous bends or loops near the river extending ultimately from east to west throughout the descent of the river and in widening its way to the Gulf of Mexico.

    The expert witnesses at the hearings conducted by the Special Master, agreed that the deepest part of the river by the channel is in the concave portion of the — where the force of the river strikes hard against the bank causing erosion and caving.

    While across the river, in the convex area, where the water is shallow accretion is formed to the bank.

    They explained that the river in the concave area crosses over to the next bend in the concave area and then again following its course downstream.

    Now material from the concave bank is deposited on the next convex bank.

    Caving is the result of the direction of a channel against the concave bank where the deepest portion of the river is found.

    Scouring may take place in the deeper portion of the river where there are high velocities.

    If the banks are composed of homogenous material, the expert say that bends are rather uniform.

    However, resistant material such as clay or clay deposits when encountered by river action form a bank called a false keep or hard point.

    And where there are such tough or resistant soil have been developed slowly and is partly controlled in configuration by that soil.

    Clay pugs are characterized as cohesive hanging together forming a resistant mass to any channel obscuring action of the river, and are quite thick.

    The experts reported crossings in the river as extending to relatively straight regions.

    John L. Madden:

    They are located almost invariably up and downstream on the — in the river.

    And in those places where the navigator goes from one deep area to another and in that is a crossing and in that crossing the water is much shallower than it is in the deeper portion.

    Earl Warren:

    We’ll recess now Mr.–

    John L. Madden:

    — made reference to crossings to the area where the navigator goes from one deep water area that follows a bend over to the next concave bank.

    And in this crossing area, we have brought out that that the water is generally shallow in there.

    Now the only purpose of that is to show the Court the difference between your conclave and your convex bank and then you cross from one area to the other.

    Now in that crossing, of course the water is shallow.

    You’re not following the deepest water because the deepest water is where you’re trying to reach.

    Now proceeding from that point, I would like to say that throughout the expert testimony, exceeding stress was placed on the high importance of clay deposits found in the banks of meandering streams.

    The experts explained this tough material not only slows down the formation and development of bends, it has in affect on the configuration, it may elongate — negate it, they won’t be uniform bends.

    At the — then it also appreciatively affects the control of the direction of the channel flow.

    It is of exceeding importance, may it please the Court it will bear this clay plug as resistant soil in mine as I further reveal the facts in the case.

    And we are going to cling as close as we can to the language of the Special Master in this matter and that’s why — course of the remaining portion of my part of the argument shall be in quotation from that because I want to link it in with the certain conclusions we reach to the end.

    On pages 6 and 7, there is a report, the Special Master says that, “At flood time, this bends, those meandering loops, grow even larger by the accelerated river action.

    Increase the overall length of the river where the corresponding decrease in the speed of the flow.

    And the greatest slope can be obtained by a cutoff across the neck thus increasing the rapidity of the river.

    The slowing down of the flow is a direct cause of flooding.”

    “And so attempts,” the Special Master says, “Have been made to alleviate this by constructing cutoff or bypass bends.”

    The Special Master requires of course to the action taken by the Mississippi River Commission under the guidance and the engineer in experience of the United State Corps of Engineer.

    In 19 — in the late 1920s and the early 19 — other in the 1930s, in their effort to improve flood control and navigation on the Mississippi River by the constructions of these cutoffs, that plan called for the construction of 15 cutoffs and those cutoffs have been constructed.

    Between Memphis, Tennessee and about 20 miles south of Natchez, Mississippi in what is referred to as the Deer Park area.

    This is getting in a proximity here of the cut that we’re speaking of and it includes this Glasscock Cutoff.

    It was one of the areas, one of the longest.

    Deer — now, I’m going to ask to draw the Court’s attention to the diagram that it appears here.

    I regret, apologize to the Court that this is not larger in the larger lettering.

    But we have a little bit hard to anticipate just to the division from the sides.

    But we have a lettering on here and I don’t know whether they can be seen from the bench or not, but here is a letter Y, it runs around to a letter H and then to J and to A, B, C, X, Z and on this side B to X.

    Now, there is a Y —

    (Inaudible)

    John L. Madden:

    Yes sir, may it please the Court.

    John L. Madden:

    That’s on page 7, I believe —

    (Inaudible)

    John L. Madden:

    Yes sir.

    Now there’s a —

    (Inaudible)

    John L. Madden:

    Yes.

    (Inaudible)

    John L. Madden:

    That —

    (Inaudible)

    John L. Madden:

    This is approximately the same draft, similar to a draft.

    And this was placed in the brief for a different point altogether in what I’m discussing now.

    And this was placed in the brief to show some kind of balancing effect of the river action and the compensating effect brought about by the cut.

    The —

    (Inaudible)

    John L. Madden:

    Yes.

    (Inaudible)

    John L. Madden:

    Yes sir.

    Now the Missi —

    (Inaudible)

    John L. Madden:

    Yes sir.

    (Inaudible)

    John L. Madden:

    That’s correct.

    Now, you have —

    (Inaudible)

    John L. Madden:

    Yes sir.

    (Inaudible)

    John L. Madden:

    Now, you have a wide sweep of the Mississippi River or you did have.

    Beginning at the point Y here, going over on the Louisiana side and it came on down here to the point and then went on out over here out of point X, the way I argue — I followed it with my ruler.

    Now —

    If we follow that would the oil well be in the Louisiana?

    John L. Madden:

    Yes sir.

    Now, such — you have this wide sweep and then it’s kind of balanced downstream by the smallest sweep to the west toward Mississippi which is the Dead Mans Bend.

    Now, those two bends have been moving in opposite directions since the first recorded surveys of this area in 1860 — in 1765.

    Now the United States Engineers decided to construct a 4-mile trench, running from the point of mark Y to point of B, that’s a distance of approximately 4 miles and that is what is called Glasscock Cutoff.

    Now — and that bypass is generally referred to and it’s correctly they describe as the Glasscock Cutoff which goes from Y to B.

    And this B is the intersection line here — is the line — is the point where the old bend of Deer Park bend comes through here, point A and then continues in the stretch of the thalweg prior to the cutoff.

    It goes around and sweeps to the east and goes from point B to C and then C to X.

    Now, the vast changes that took place in connection with the cutoff weren’t completely visible.

    The drag in by the engineers was clearly perceptible, so where with the tons and tons of material that was dredged out in deposits on the then existing banks.

    Before the entrance the Deer Park dam were shut off and now you find trees, well the trees go in there.

    You have a material flopping in this area, very acute slope, where there was a 160 acres that caved in.

    Now throughout that cut, it is inescapable and it would’ve been inescapable to anyone watching it, the things that it progressed in that area.

    So we can’t say that this action was incapable of perception —

    What?

    John L. Madden:

    A what?

    Incapable of perception, that you couldn’t see it.

    Now on pages 46 and 47 of his report, the Special Master has this to say, “The original plan of the engineers was to excavate a narrow 4-mile pilot channel, across the neck and then to permit the natural scouring effects of the river to complete the cutoff by moving through the cut in ever increasing amounts.

    The pilot channel was dug in the early 1933 and had a slight curve in the middle.

    So it can direct the flow into Dead Mans Bend on a course approximately south.

    Still quoting from the report, “If the cutoff once developed by the river was to maintain its pre-planed course, it was essential that there be uniform caving on both banks of the cut.”

    “This did not occur,” the Special Master says.

    Instead, the highly resistant clay deposit that we’ve reaffirmed with.

    In this area about where my ruler is pointing.

    (Inaudible)

    John L. Madden:

    Instead, the highly resistant clay deposits which engineers encountered in the middle of the cut.

    (Inaudible) to take a course somewhat west of south.

    And thus it eroded a less resistant bank of the lower western side.

    Instead of the water coming around here and getting in this sweep than it — the water started in this direction here hard against the Louisiana Bay.

    Still reporting from the Special Master, aside from this unexpected development in the construction of Glasscock Cutoff, it was also a considerable delay in its final completion.

    This delay was caused mainly by the same clay deposit which continued to settle back into the cut act — excavation.

    John L. Madden:

    For this reason, the cutoff did not carry an annual average of more than 50% of the flow until about 1941, eight years after they commenced with the construction.

    Earl Warren:

    Mr. Madden, may I ask you a question just to orient myself.

    Are you now directing this argument to overturning a finding of the Master?

    John L. Madden:

    I am leading up — I think the best way to answer that Mr. Chief Justice to say that I’m staying with the facts that the Special Master found.

    But I am laying the foundation to be followed by my co-counsel and arguing that certain conclusions of law reached by the Special Master should not be followed by this Court.

    Earl Warren:

    Well, are you stating to us now just the evidence of your experts or are you presenting to us both sides of it then contending that there isn’t substantial evidence to support the finding?

    John L. Madden:

    Mr. Chief Justice, in preparing this argument originally, it was my idea to single out each four witnesses.

    But then, I decided that the thing to do was to find out what they all agreed to.

    And then I’d say what the experts say.

    In other words, what I am saying now in my judgment after reading the transcript, all of the experts agree upon the Court.

    Earl Warren:

    This —

    John L. Madden:

    Yes.

    Earl Warren:

    Now what’s — that I didn’t understand —

    John L. Madden:

    Now, the Special Master then goes on to say in his report and that’s in page 51.

    It was conceded by all the experts and is — excuse me for interrupting with this quotation, but the Special Masters is doing here what I am trying to do with my arguments, to follow the uniform expression of opinion by the experts.

    “It was conceded by all the experts in Dead Mans Bend would have continued to migrate eastward and to Mississippi –”

    William J. Brennan, Jr.:

    I don’t find that on page 51.

    John L. Madden:

    It isn’t on page 51?

    Potter Stewart:

    Its on page 40.

    John L. Madden:

    Oh, I beg your pardon sir, it’s on page 40, I’m sorry.

    Would’ve continued to migrate eastward into Mississippi had it not been for the construction of Glasscock Cutoff.

    Hence, but for the construction of the cutoff, the well today would have been well within Louisiana.

    Now if Your Honor pleased, if you can turn to page 51, there is this quotation from the Special Master.

    “The elimination of historical Dead Mans Bend has called an erosion into Louisiana in a — an accretion of aluminum to Mississippi in the first three miles below cut.”

    Now there’s three miles below the cut is the problem here.

    Now I call the Court’s attention to the fact that the railway had been left alone, there would not have been any cut at all because of this highly resistant soil.

    Now — the parties to this action and the Special Master agree that the boundary around here is — it’s been fixed.

    And the — then Special Master and all of the witnesses agree where the old channel was that follows from A, B, C, X.

    Then there has also have been agreed by stipulating between the counsel that the previous main channel runs along the line B, X.

    Now, Special Master had no particular difficulty in reaching the vast majority of his findings but he had difficulty in certain combinations of course that were no river surveys from 1942 to 1951 and now from 1952 to 1954.

    John L. Madden:

    It was particularly difficult for him to try to locate the position of the thalweg with relation to the well during certain years.

    Now, may it please the Court, I want to say it very briefly before I close that we have arrived at four major conclusions in connection with the facts that have been found with the Special Master.

    First, that where in an action of this kind the cutoff is constructed by the United States Engineers through the use of artificial means and the direction of the current has been changed so drastically as to eliminate an entire (Inaudible) bend after creating instead in reverse bend.

    Then the boundaries should remain where it was before the construction — before it was started.

    Hugo L. Black:

    Has that ever been held —

    John L. Madden:

    That sir will be discussed by Mr. Carmouche but this Court is not held that.

    I don’t think you have a case Mr. Justice Black.

    Second, human agencies should not be able to bring about results that acts of nature cannot alone accomplish.

    The drastic changes made by the United States Engineers in diverting the direction of the channel out of Glasscock Cutoff reversing the direction of the flow is not a thing that nature could have been done alone.

    Now, if a certain minor changes have made where nature could do it alone, man could do it, then the states are expected to resign emissaries to this minor changes but when a man comes in and completely ignores the nature and does that which nature cannot do, then we think that states like Louisiana in an action of this kind has the right to question some of the old concepts of avulsion.

    The terms used and the semantics in connection with — before the third point, I’d like to make is that — and the conclusion we reach is that we are living now in a time when United States had been setup upon a number of years on a wide scale, river improvement program to assist in flood control and wide scale improvement of navigation.

    You don’t have situations now that you had years ago when we talk about accretion from the standpoint of —

    Is it?

    John L. Madden:

    Did it take the sending (Inaudible)?

    And those old that came up when it took to an American jurisprudence.

    Now that fourth and the last — final point that I would like to make, our conclusion is that the solemnity of long existing state boundaries and the propriety rights therein acquired invested interest therein created, protect it and preserve.

    Now, as you’re going to follow in situations of this kind of (Inaudible).

    You’re not protecting those innocent at all and you’re not coping with modern day conditions of exigencies.

    There’s no exception in the substantive law after boundaries of space may not be altered except by compacts between states ratified by Congress.

    Now, if the states without congressional approval and Congress acting unilaterally cannot alter state boundary then it seems to us to be unthinkable that the United States Engineers may change boundaries and destroy titles.

    Thank you.

    Earl Warren:

    Mr. Carmouche.

    Edward M. Carmouche:

    Thank you sir.

    May it please the Court.

    The Special Master found as Mr. Madden pointed out in his open statement that the vested rights of the State of Louisiana are directly involved in this case.

    In addition, some of the property rights of its mineral lessee Humble Oil Refining Company also all the rights of certain Mississippi citizens as well as the State of Mississippi.

    The Special Match — Master advised this Court that you should take jurisdiction over the boundary question which should leave these ancillary issues to some other tribunal.

    Needless to say the problems of taxation of the validity of leases of the administrative powers exercised by the state over the production and sale of petroleum products make all of these factors inextricably bound in with the boundary question.

    I would like to point out that Louisiana does not wish to submit itself to any other tribunal insofar as these ancillary matters are concerned.

    We think that this is the only court that has jurisdiction over all of the Courts.

    Edward M. Carmouche:

    Now, I am authorized to say on behalf of Humble and we in Louisiana recognize that Humble may have certain additional defenses to the State of Louisiana as well because they have leased this from citizens from Louisiana as well as the State of Louisiana.

    Nevertheless, Humble joins with the State of Louisiana in its principle argument on the boundary question.

    Now, there really three general rules of law which are involved in this case.

    The first rule is that when a navigable river such as the Mississippi forms the boundary between two states that the thalweg or middle of the main channel is the boundary.

    Second, the Master stated with accuracy on page 14, when by a natural, gradual and more or less imperceptible processes of erosion and accretion, the thalweg changes, the boundary follows the stream and remains along the varying center of the channel, citing New Orleans versus United States.

    Equally well established in our law is the proposition of avulsion.

    When an avulsion occurs, the center of the old channel remains the boundary, County of St. Clair versus Lovingston.

    Now in the context of these general rules of law and the facts in the record, the position of the State of Louisiana may be stated as follows.

    First, the changes which took place here are avulsive in nature, are avulsive in effect and therefore in and of themselves are sufficient to cause the boundary to be fixed permanently as it was prior to the work of the U.S. Engineers.

    Second, the changes here were wholly caused, all witnesses testified this.

    Were wholly caused by artificial means, the artificial means here used were so extensive and the changes resulting there from were so drastic that this Court is required to rule that the boundary has been fixed permanently.

    Now, we will show that the changes are avulsive in effect.

    There’re various definitions of avulsion and no one definition is consistently used by this Court.

    Perhaps the best definition is contained in 56 American Jurisprudence Section 477.

    Avulsion is a sudden and perceptible loss or addition to land by the action of water or a sudden change in the bed or course of a stream.

    All of the cases show that there are actually to types of avulsion.

    One type is where there is a sudden and perha — perceptible gain or loss of land on the banks.

    The opposite of this type of avulsion is the gradual and imperceptible process of accretion and erosion.

    It is in that kind of avulsion which deals only with banks that the element of time and perceptibility become important.

    The other type of avulsion has nothing to do with the banks of streams.

    This is avulsion in which there is a sudden change in the bed or course of a stream.

    This type of avulsion is not the opposite of accretion.

    We do not have here a change in the bed of the river in the case at bar.

    But what we do have is a definite and drastic change in the course of the river.

    In this case, we found that Dead Mans Bend which had previously flowed hard towards the Mississippi bank has been wrenched by the U.S. Engineers and now flows hard against Louisiana’s side.

    This is a complete reversal of the forces of nature.

    We are here concerned in this case, not with what has happened to the banks, has there been a build-up with the accretion.

    We are concerned here with the location of a thalweg which follows the main channel of navigation.

    This is a line in the water and here, time and perceptibility are not necessary in order to contrast what occurred here with some other rule of law.

    In many cases where the distinction was unimportant, it has even been stated that our second type of avulsion had to be perceptible.

    Edward M. Carmouche:

    The cases indicate that the factor of imperceptibility has never stood in this Court’s way in determining an avulsion.

    If there was a drastic change in the bed or course of the stream, we know of no case where there was a drastic change in the thalweg in which this Court has ever held that the change was not rapid enough to be avulsive.

    The cases we have examined of this Court show that periods as short as one year or as long as 10 years had been sufficient to be held avulsive.

    In our own case, the engineers took eight years before the Glasscock Cutoff was even the principal channel of navigation.

    It was 19 years before the avulsive works were completed in the cutoff.

    Only in 1952 was the high water flow all through the cutoff, yet no one questions here even our friends from Mississippi, that what happened in this Court was avulsive.

    On the facts that we have here, there should be no doubt that the changes which occurred were sufficiently rapid viewed with respect to nick of time lapsing in past cases.

    The change of course took place in the problem area quite dramatically after 1951.

    Now Mississippi’s own contention was, which they vigorously urge show that the oil well which is set fully located in the problem area that the thalweg changed 1500 feet in less than 18 months whereas, it had changed only a thousand feet from its 1933 location in 18 years.

    Mississippi in its argument would penalize us because the engineers to — who undertook what at that time was a gigantic task and failed to maintain channel line.

    They would also penalize us because the engineers took a long time to accomplish their work.

    We should not be so doubly penalized.

    We therefore may conclude that the changes here correspond to the basic concept of avulsion and to the fundamental reasoning inherent therein accordingly the same legal consequences falling from avulsion should be applied to this case.

    Now beyond the concept of avulsion, let us now consider violent changes which are caused wholly by the works of man.

    Can the works of man which completely reverse the processes of nature as on the facts of this case change the boundaries of states?

    Absolutely not.

    Of course there was a time not too many years ago when the power of man to so drastically affect boundaries simply did not exist.

    There had been a number of instances in the past when water has been diverted or the flow of some — to some extent change.Generally however until the past generation or so, the power to do this to any great extent was extremely limited.

    Certain is the case which rivers is powerful in the Mississippi.

    In this day and age with increased sources of energy available and the increase in technical knowledge, the power of man has become almost unlimited.

    Today, we find our scientist and our government leaders discussing in all seriousness the feasibility of a canal across the northern part of Florida, the advisability of blasting a path for the Rio Grande all the way to the Pacific Ocean, a construction of dams that defy the imagination.

    There is pending in Congress today, a bill to study a 30-year project calling for the complete realignment of all the northwestern sources of water and the utilization of presently existing rivers to carry tremendous, almost unheard of volumes of water to the entire western path of this country.

    Of course, this works are not undertaken lightly, it is generally agreed that they are for the ultimate benefit of the people of our country.

    But it should not be necessary to weigh this benefit against the laws that it will do to a state if its boundaries have been changed as a result of this work of man.

    It is not our purpose here to say that this work should be discontinued.

    It is only to suggest that the rule of law which we espouse today that the damaging effect of these works be minimized, so that the benefit of these works may be fully realized without impediment and without the necessity of any sort of compensation or payments to those who unfairly lose on an individual basis in order to satisfy public necessity.

    We know that our boundary — if we know that our boundaries cannot be changed, we remove a major objection to otherwise a worthy project.

    The rule that we espouse is not a new rule of law Your Honors.

    In State versus Bowen, Supreme Court of Wisconsin, 135 northwest 494.

    Their railroad company constructed a dam across the east channel of the Mississippi River to the west of Minnesota Island.

    Edward M. Carmouche:

    The boundary had formally been through this channel.

    This directed the current around the other side of the island.

    The Court held that this constituted an avulsion saying, “It is obvious that any change brought in the flow of water by means of a dam cannot affect the question of state boundary anymore than cuts can such change produced by an avulsion.”

    But neither can have the boundaries of his domain changed by avulsion or by the diversion of water affected by human agencies.

    In U.S. Gypsum versus (Inaudible), United States District Court Police and District of Arkansas in 1964, the Court held, “I am convinced, incidentally this was after ten years of dredging by the U.S. Engineers to accomplish the purpose.”

    The Court held, “I am convinced that insofar as the time element is concern, that the shift of the Mississippi River from the dam way to the point way meets the necessary requirement of an avulsion.”

    In Whiteside versus Norton, which is an Eighth Circuit Court case of 1913, the Court held that the main channel of the St. Louis River was located north of Tallas Island and at this point fall a boundary line between Minnesota and Wisconsin.

    The U.S. Engineers dredged the channel south of Tallas Island, the work took from 1899 to 1902 or three years.

    The Court held that title cannot be divested by artificial and arbitrary process.

    The case further held that Congress without consent has no power to change the boundary between states still last less does an administrative department, meaning the United States Engineers.

    We — the Court held, “We cannot agree that human agencies can suddenly bring about what like acts of nature admittedly cannot accomplish.”

    Cutting this channel was analogous to avulsion.

    It could not operate to change the boundary between the State of Wisconsin and Minnesota.

    That case was appealed to the United States Supreme Court.

    An appeal was refused on other grounds, but this Court through Chief Justice White said, “We are clearly of the opinion that the mere fact that Congress in the exercise of its power to improve navigation, directed the construction of the new channel affords no basis whatsoever for the assumption that thereby as a matter of federal law, rights of property if secured by state law were destroyed and new rights, a property on the assumption indulged in incompatible with that law were bestowed by Congress.”

    Now in Louisiana versus Mississippi, 350 U.S. 5, this Court adopted the Master’s finding.

    There, the Master held, the construction of dam and cutoff being an artificial avulsion did not alter or change the boundary between the two states.

    Before development of that dam and point cutoff required eight years and this Court adopted the Master’s report as its own.

    Thank you gentlemen.

    Earl Warren:

    Mr. McLendon.

    Martin R. McLendon:

    Mr. Chief Justice, Associate Justices, may it please the Court.

    We would like to open our argument by expressing the personal and the precession of the state for the fine scholar and the gentleman that the Court appointed, the Special Master to here, this case.

    The fact that we might agree wholly with his factual findings as will be presented later does not detract from our high regards for him personally and as a legal scholar.

    We think he found the law of Mississippi — I mean not all of them Mr. Justice, of the United States as it is and correctly found that the — based thereon he declined to recommend that there’d be any changes in that law.

    Now, we argued before this Court on December 10th, 1963, Louisiana had taken up the cordial of its lessee, Humble Oil and Refining Company by — they’re trying to take back what the river had formally given them and taken back an oil well to its lessee.

    This Court rejected that argument, authorized us — I mean, authorized them to file their complaint.

    But now, I think it is perfectly clear that all Louisiana is interested in is one oil well.

    They haven’t given one sound legal or logical basis for changing the boundary from the live and flowing Mississippi River to a point that travels across vast and dry land — across Mississippi accretions.

    They haven’t given one reason for that except of the fact for that there’s an oil well involved.

    Now, we have Mississippi.

    Martin R. McLendon:

    We’ve lost by that river’s action.

    We’ve lost cases before this Court on the thalweg theory.

    In fact, its — most of the production in the Gulf of Mexico off from the Louisiana courts as this Court decreed that it was, was at one time a point of controversy between Mississippi and Louisiana.

    And the thalweg theory adopted by this Court was followed by the Court and took it away from it and that’s vast field of oil and not just — and as this Court said in Oklahoma versus Texas, irregardless of how valuable those so vacuous rights become, value has nothing to do with changing rules of jurisdiction and property.

    As this Court has heretofore announced.

    Frankly, we would delighted to hear that Louisiana does not even take issue with any of the Special Master’s findings.

    And the Special Master found that the Court will — with me on page 50.

    William J. Brennan, Jr.:

    What page?

    Martin R. McLendon:

    Page 50.

    The last sentence, paragraph E of the 26 Special finding.

    This change in Dead Mans Bend from 1933 — 1932 to 1952, although artificially called and not an unusual change for that — was not an unusual change for that river.

    And it cannot be considered as sudden and perceptible in the historic pattern it before established.

    Louisiana alleged in order to ask this Court to take jurisdiction of this case that an avulsion occurred, an avulsion within the bed of a stream.

    Now, we denied it.

    Special Master found that an avulsion did not occur.

    So therefore, it should be dispositive of the matter because they did not prove suddenness or perceptibility.

    Mississippi was put to the burden of proving that all of the changes took place within the bed of the river.

    And that between the high banks of that river, every change that was testified to occur, one of our witnesses said so in page 682 and 683 of the record.

    Another one said so on 818 and 8 — again, on 826 of the record.

    Of course, all of those points of their, I think (Voice Overlap) —

    Earl Warren:

    They said what to, Mr. McLendon (Voice Overlap)?

    Martin R. McLendon:

    They said that all of the changes as even as shown by this — as he put it an —

    Earl Warren:

    Yes.

    Martin R. McLendon:

    — amateur’s drawing of what occurred took place within the high banks of the river.

    In other words, there has been no abandonment of the bed of the stream as this Court has heretofore call for when it even considered an avulsion.

    What Louisiana is doing in this case is trying to put the Court before the horse.

    The facts are that there was a change in the bed of the stream.

    That stream is a boundary stream.

    The river is the boundary and has been since the date — being settled.

    Now, in addition to that, our records, Volume 4 and 5, which to our two expert witnesses who were renowned authorities on this river testified and the — Special Master accepted that testimony on the fact that all the changes within this river bed were as a result of erosion and accretion.

    Martin R. McLendon:

    Since we filed our replied brief to their exceptions, the pre-factories statement if the Court will look at it on opening of the gray brief —

    Byron R. White:

    Mr. McLendon, can I ask you, what if the — what if in doing the cutoff that the project had included anticipation that the flow of the water would run against the Louisiana bank and it might be better just to stretch it out right at the outset.

    If the Corps of Engineers had said, “Well, we’re going to do the cutoff but then we’re going to go slice off 50 yards of the Louisiana shore lines or bank, river bank,” and they have gone having done it.

    Would that have been on avulsion on a —

    Martin R. McLendon:

    I don’t think it would have been an avulsion, Your Honor.

    I think that certainly the Corps Engineers (Voice Overlap) —

    Byron R. White:

    Certainly, the thalweg would have changed thereafter.

    There would have been a new main channel as a result of that cutting off 50 yards of the Louisiana river bank.

    But — what would have been the result been in your view as to where the boundary was?

    Would it have been the thalweg or would it have been the old thalweg?

    Martin R. McLendon:

    Well, according to the rules of this Court as we understand it, if within that 50-yard area, vast land appeared, it would have been an avulsion, yes.

    Byron R. White:

    But if — but you say it wouldn’t have been an avulsion just because the bank was cutoff by human-hand.

    Martin R. McLendon:

    Well, Mr. Justice White, I see what you’re driving at and I don’t know that — that is not getting close to what happened as a — and I hate to apparently beg your question but I just — it didn’t happen.

    The cutoff was through here —

    Byron R. White:

    Yes.

    Martin R. McLendon:

    — and that is a very distinct cutoff.

    And I think your question itself is, if I may suggest is — I mean, implying a bad motive on the part of engineers to slice up a part of a state’s territory.

    Byron R. White:

    Oh, no.

    Martin R. McLendon:

    I’m sorry, if I misunderstood it to that point.

    Byron R. White:

    Well, you go ahead.

    Hugo L. Black:

    May I ask you, how much the land there is in that U shape?

    Martin R. McLendon:

    This part here, Your Honor?

    Hugo L. Black:

    Yes.

    Martin R. McLendon:

    I don’t have any idea.

    The land area, I understand from various witnesses, testimony that this old bend way is approximately 19 miles and this is approximately four miles.

    And of course, there’s a notice being an argument that this — the boundary — now they argue that the boundary became fixed up in here, but it did but not with the opening of this.It continued to change by erosion and accretion until such time as the river seize to flow and carry navigation.

    And that’s the point where I mentioned a minute ago that trying to put the cart before the horse because navigation never ceased in this area.

    Hugo L. Black:

    Suppose the Government has to prove the (Inaudible) instead of having 19 by 4 (Inaudible)?

    What would have been the rule then, is that a change for having avulsion?

    Martin R. McLendon:

    The avulsive — the parts of the river that were cutoff by avulsion would —

    Hugo L. Black:

    I’m talking about the Government decides to (Inaudible) you changed the — that’s what the — that is the 19 by 4 (Inaudible) 50 miles on side of the stream where it hasn’t been — what would that be?

    And would that change the state (Inaudible)?

    Martin R. McLendon:

    We don’t think so Your Honor, I mean, because if the — if that’s what they tried to do was straightening out this river from (Inaudible) to New Orleans, and that was a part of the project.

    And where they have changed it across vast lands, the boundary itself has become fixed.

    And this of course is still a flowing river but on both sides of the State of Mississippi.

    Now on the —

    William J. Brennan, Jr.:

    In other words — there’s no controversy here about what’s inside the view, the 19 by 4.

    All of that enclosed in there is Mississippi, isn’t it?

    Martin R. McLendon:

    As we understand it, yes.

    William J. Brennan, Jr.:

    Yes.

    And the — it’s no longer navigable around the bend and therefore wherever the old thalweg was, is that right?

    Martin R. McLendon:

    That’s right.

    William J. Brennan, Jr.:

    That fixes the boundary between Louisiana and Mississippi, doesn’t it?

    Martin R. McLendon:

    That’s our understanding, and yes because the —

    William J. Brennan, Jr.:

    And the —

    Martin R. McLendon:

    — not because of the cutoff but because that it —

    William J. Brennan, Jr.:

    The bank —

    Martin R. McLendon:

    That is —

    William J. Brennan, Jr.:

    What is (Inaudible) is that little segment below the cutoff area that on this map is, B, C, X.B, is that right?

    Martin R. McLendon:

    Well, that’s their version of the Bs — X line of the course of one that Mississippi contends for.

    William J. Brennan, Jr.:

    The B, X is the one that the Master has taken in?

    Martin R. McLendon:

    That’s right.

    William J. Brennan, Jr.:

    And the B, C, X is the old —

    Martin R. McLendon:

    That’s the boundary that never did ceased to flow as the live and flowing Mississippi River.

    In fact, they asked for the fixing of a 33 boundary because this alleged that the hand of man can change a state boundary, they asked for a 33 boundary when the proof shows beyond dispute that the river continued to migrate into Mississippi for three years after that.

    Now, why they want to cut themselves off of that extra three years of yard is I don’t know but that’s the — the river was continually flowing from here on down to the Gulf.

    Hugo L. Black:

    What is the amount of the river (Inaudible)?

    What is the exact amount of land involved (Inaudible)?

    Martin R. McLendon:

    Your Honor, the record does not show but there is no land as such that will be transferred, it’s a submerged land.

    It’s all —

    Hugo L. Black:

    Yes.

    Martin R. McLendon:

    — just right within the bed of the river.

    I mean, I think there’s some 2000 feet between the high banks maybe more, maybe less, I’m not an engineer.

    I’m not even an engineer to the point of drawing one of these amateur things.

    We’ve got to use the evidence that the engineers fixed.

    Now, this same argument was advanced to the Special Master.

    And on page 21 and 22 of the record, he specifically rejected it.

    He says it may be for the Court to change but I can’t conscientiously recommend it.

    That he started all the case flow because he asked them on more than one occasion during the trial of this case.

    Do you have any authority of that an avulsion can occur within the bed of a stream?

    And they haven’t come up with it.

    Except the specific point in the three case, the four cases they discussed except within a specific point where the actual dredging took place.

    Process of erosion and accretion took place below that.

    Now, the Special Master also found that the rules of erosion and accretion are to be preferred in all instances.

    That is when a boundary stream is a — a flowing river is a boundary between the states.

    Now, they mentioned the thalweg grew, I don’t think that’s a separate rule.

    The thalweg grew was established in Iowa versus Illinois, so landmark case.

    And in that case Your Honor, there was dredging — not dredging, actually the record showed that the rock, hard rock was excavated to change the navigable channel, 300 feet closure to the Iowa side.

    It’s a case in that — that the issue in that case was who was — detached the bridges across the river.

    In the bank shown, page 4 of the Special report, that the — who was — someone dredged out 300 feet closer in order to make access to United States Canal farther on up the river.

    That was an alleged fact and admitted for the purpose of this Court.

    And that was the case where this Court established for the jurisprudence of this country, the rule of the thalweg, that is along the main mid-channel of navigation.

    The Court came along 25 years later on Arkansas versus Tennessee and said, “The rule of the thalweg was settled by that decision and we will not attempt to tamper with it,” that is just 25 years ago.

    That’s been over a merely hundred now.

    So we’re not just talking about one oil well.

    As the Court said in Louis — Oklahoma versus Louisiana, we won’t change the jurisdiction of property rule because of mini-oil well.

    We’re talking about the boundary of everybody that borders on navigable streams in this entire country.

    Can the hand of man change it from a flowing stream as it was made by trees before the country was a nation, when it was still a nation of others?

    That it was made on by nature, as it was made by acts of admission and in truth and in fact was stipulated too by the parties in this lawsuit.

    Now, one other significant rule that we think is important, again in Arkansas versus Tennessee where this Court said, “It is settled beyond the possibility of dispute that were running streams are the boundaries between states, the same rules as between — same rules applies as between private proprietors.

    Martin R. McLendon:

    Namely, that when the bed and the channel are changed by the natural and gradual processors known as erosion and accretion, the boundary follows the very thalweg bearing course of that stream.”

    Then of course it goes on and announces and in a — and that’s the exception to that rule.

    And that case if the Court please, it’ll find when it — when the status, that was the same case that said even though there is an avulsion, the boundary, the thalweg boundary continues to waiver by the processes of erosion and accretion until such time as the streams ceases to be navigable.

    And there is not one shred of proof anywhere in that merely a thousand pages of record that this was ever anything with the delight of employing Mississippi River down from the beginning.

    Now, the rules that we’re talking about, that is erosion and accretion, go back — had been traced back by this Court, and we certainly recognized it a — the — they’re tracing back was more further than we could possibly do it but they were traced back to the rules of just any end, which was the original or the codification of the common law.

    That is the fact that erosion and accretion, that boundary changes property, private property or public property, boundary changes by their physical fact of erosion and accretion, the boundary moved with those erosion and accretion.

    Hugo L. Black:

    Is there any difference in the accretion with the rule (Inaudible)?

    Martin R. McLendon:

    Well, there’s a — as Arkansas versus Tennessee said, I just read it.

    It was the same rule as between private parties.

    Now, in St. Clair County versus Lovingston, which is another landmark case in this country, this Court held as a matter of law annunciated the issues and it said, one was the mix — first one was a mixed question of fact and law, and the second was a question of the law.

    Then the Court said, “It is insisted by the learned counsel for the plaintiff in there that the accretion was caused wholly by obstructions placed in the river above and that thence the rule under the subject of alluvium do not apply.

    If the fact to be so, the consequence does not follow, there is no warrant for the proposition.

    The approximate cost of the deposits made by the water, the law looks no further.”

    We have no doubt that that language — in similar language in all of these cases is what prompted this — the Special Master on page 17 where it vividly do point out that the Court always looks to the result and not the cause.

    William J. Brennan, Jr.:

    Would you know of any other cases of (Inaudible) St. Clair that dealt specifically with the matter of artificial man-made causes of erosions?

    Martin R. McLendon:

    Yes, Your Honor.

    Kansas versus Missouri, it’s cited in our brief dealt with.

    The Corps of Engineers erected dikes to — for the specific purpose of relieving or changing the channel, and the Court held it — that was not enough to sustain Kansas provision.

    Mississippi versus Louisiana, which was the last page we had.

    This two states had anything to do with was a case involving one of these 15 cutoffs that extend from — oh, one above Memphis and the rest of this is the lowest in the chain of following down the river.

    One of this 15 cutoffs, the Court took the thalweg around the bend way and fixed it where the river had died where the navigable channel had stop.

    And in the areas where it was still navigable, the thalweg was held to be the boundary in that case and this Court followed it.

    I don’t know where they’re innocent until they had anything to do with artificial thing, but in — if the Court will note, our brief also in 134 ALR page 556, there is an excellent annotation on erosion and accretion and the artificial causes there.

    I mean this is not a thing that would — this Court has been plagued with original actions dealing with flowing boundaries.

    But if it — that’s Louisiana’s theory, that for no reason at all in 1932 that boundaries still eroding away into Mississippi.

    For no reason at all, it’s because of few drops of water came flowing down here.

    That boundary became fixed if not only would — they’d just — I can’t conceive of the amount of litigation that will resolve, it’s bad enough already with each others throat every time something valuable comes up.

    But if you start changing the rules and as we observed in our brief, it’s very simple, the rule are — let’s say, somewhat — I may be over simplifying and I hope not, certainly the Special Master thought that they were simple and to the point.

    The rule is erosion and accretion and the one exception is avulsion.

    Now, the reason for that rule is because people don’t go out there where they end up where a river is.

    Martin R. McLendon:

    I mean, the river is flowing, it’s alive, it’s going day and night.

    And the rules are — of necessity must have to be simple because it can get to the most complicated facts of situations in the world even with.

    Now in relation to that one oil well, what flows — I’m going to ask the clerk if he will distribute to the members of the Court copies of Mississippi Exhibit 2.

    We had him taken out to the files yesterday, we have ten copies up here.

    And would ask if it — if the Court — well, it’s a (Inaudible) copy and it illustrates the point that we think needs to be illustrated at this time.

    As we were tracing our background on this erosion-accretion thing, frankly and I believe was the man who’s credited by this — all of having brought it, transferred it to the common law and this has been adopted as I pointed out in St. Clair versus Lovingston.

    Now, what we point to illustrate by this is the Court held in St. Clair versus Lovingston that the river and right to future accretions is a vested right.

    It is comparable to the flux the owner of the flux and he — being entitled to the increase or as the Court said the fruit from the tree, the man being entitled of the fruit if it’s barren.

    Now, the rule — it’s a very poor rule, it doesn’t work both ways.

    Now this river as we pointed out has been the boundaries since the beginning of history of either these two states as states.

    Now, this that I handed you is a copy of the — from the Land Office of Mississippi, it’s a original copy of an original survey of this area of the river.

    Now, you will note on there that there is a U-shaped black circle on the — starting on the upper left-hand corner and coming down.

    There is a different shaded circle — I mean, different shaded rectangle of a thing bordering the river.

    And over on the right of that different shaped rectangle, the thing there is a line that’s written on there proximate bank line of maximum recession.

    That is before the river started flowing the other way.

    The point of this illustration is that Mississippi when it was admitted into the Union, this particular oil deposit that Louisiana now seeks us — seeks this Court to change the rules for, was under vast lands within Mississippi.

    William J. Brennan, Jr.:

    That’s in that Block 11 —

    Martin R. McLendon:

    That’s in that Block 11 and the point there of the arrows pointing to it Your Honor.

    William J. Brennan, Jr.:

    Now those — would you tell me again Mr. McLendon, what’s that proximate banking of maximum —

    Martin R. McLendon:

    That’s the proximate bank line of maximum recession.

    This is — that what you see over there on the left-hand side is the river boundary in 1832.

    That was some 15 years after Mississippi became a state.

    William J. Brennan, Jr.:

    So all of 11 was Mississippi vast land.

    Martin R. McLendon:

    Mississippi vast lands, in fact it was an irregular session — section because of the — as is noted there on the left, the South Coast.

    Now it’s noted from there that Section 7 which wasn’t irregular section has gone down to the Gulf so or some place else.

    It’s no longer there.

    It’s gone forever.

    And parts of 16th and parts of 10th and then parts of 3, and all of four was the line that we drew, didn’t go quite that far.

    We drew it for emphasis of this one point.

    Mississippi lost this oil well by the rules adopted by this Court.

    Martin R. McLendon:

    And they can — Louisiana can speak for Humble Oil they want to.

    But we don’t see that Mississippi should now after a natural change has brought it back in the Mississippi, there’s just no equity or justice in letting us lose it again by changing the rules.

    Abe Fortas:

    You said seven, did you mean 17?

    Martin R. McLendon:

    17, pardon me Your Honor.

    I was looking rather far of that from of there than you — you’re absolutely correct, Section 17 is gone.

    That’s the one was shaded out with this light.

    Hugo L. Black:

    May I ask you whether the fact (Inaudible) other than Mississippi and Louisiana?

    Martin R. McLendon:

    Yes sir.

    Beg pardon?

    Hugo L. Black:

    What are the factors (Inaudible) the oil having been the concern?

    Martin R. McLendon:

    Well, my associate —

    Hugo L. Black:

    So that in Mississippi or Lousiana?

    Martin R. McLendon:

    My associate counsel Mr. Teller was going to discuss the ramifications of it.

    There were two oil company —

    Hugo L. Black:

    (Inaudible)

    Martin R. McLendon:

    Well, I mean I just wanted to point out that there were two oil companies and they leased both sides of the river.

    And they had a surreptitious agreement between them.

    And that the boundary was fixed by them and not recorded.

    So whatever their consequences I think that they have made there bed that there should be committed to — by it.

    Now I just — I want to close out the Court — well.

    I just — one last thing, we asked that this Court, not change the state boundaries for the benefit of one oil well.

    If refused to do it, in Oklahoma versus Texas as ample present to everything we’ve said and I promised my associate that I would divide the time equally, he will speak to the other issues.

    Thank you Your Honors, I appreciate it.

    Earl Warren:

    Mr. Teller.

    Landman Teller:

    May it please the Court, Mr. Chief Justice and Associate Justices.

    We are here as Your Honors will find after you have an opportunity to restudy these former decisions that had been announced by this Court, dealing with a firmly entrenched rule of property.

    One, which the — must be governing millions of miles where boundaries through streams divide boundaries between property.

    And as Justice Brandeis promote in one case and most instances, it is more important that the applicable rule would be of law be settle than that it’d be settled right.

    However in this case, we don’t think it’s any doubt but it’s not only settled by the wisdom of ages.

    But there is settled right and I’m going to carry a moment if I may to further go into that one picture.

    Landman Teller:

    I did not — there is — they are asking for a rule which will cause the Court to say, because in 1932 they — (Inaudible) as they had a right to do and this is not questioned and I would like to cite one case which was not cited in our original briefing, I call it to the attention of the Court if I may.

    It’s a case of Gibson versus United States, 166 United — U.S. 269 and that’s a case which recites that riparian ownership such as this is subject to the obligation to supple the consequences of the improvement of navigation or flood control in the exercise of the dominant right of the Government in that regard.

    And that the — when the Government does this works, they are simply asserting a right belonging to the Government to which the riparian property is subject and not of a right to appropriate private property, not burden with such servitude to public purposes.

    In short, this Court has held that the damage resulting from the prosecution of this improvement of a navigable highway for the public good was not the result to the taking of appellant’s property and was merely incidental to the exercise of a servitude to which our property has always been subject.

    Now people own lands up and down the river, know that they can gain (Inaudible).

    They apply those, the states require it, subject to a paramount right of the Government to develop those lands.

    And it has been stipulated, as a matter of fact we agreed on a number of facts that the Government in this case in cutting this particular cutoff was exercising a lawful and unquestioned right to improve navigation and flood control.

    Now, if we start looking to cause and if we abandon the laws of accretion and erosion and just say, “What is the — or is this going to be — is the land going to be affected downstream because the Government did something upstream?”

    No one will ever know what they own, where it begins or where it stops, and this case is an example of that.

    While the State of Louisiana — when they came into this Court and they — they’ve got it in their brief that they filed that and they even announced their desire, I distinctly recall but I can’t be confirmed by the fact that’s in — their supplemental brief they filed before December of 1963, said that this very area in dispute were downstream 12 miles that the effect of this could be felt 12 miles down in the (Inaudible) Bend that you could measure them that far.

    Now when they get to try in the case is an oil well — we can only measure them three and a half miles because after this, the configuration starts — calls the Louisiana to gain lands.

    You see, this is not an accurate portrayal of what it existed if they say it just accrued now but it is.

    There are many that are — and absolute that you do have in this record volume.

    But that is embarked but if this comes about, it has made, it has tended to make a bend that’s coming in this way and going out that way.

    And as it goes out this way, Louisiana has gained and they say that and the Special Master says that and their brief admits that.

    So then — but they want this Court to stop — but when Louisiana stops gaining, (Inaudible) — they say stop right there, this is the point.

    We can measure up to here and that therefore the line (Inaudible) before somebody else comes in and measure it.

    I tell the Court if they will change this rule, you’d have to have a Special Master going to measure down further so each year it has the further effect that cause this (Inaudible) here.

    It’s different that it would be before — when it wasn’t there.

    I mean, the flow of the water, the consequences.

    And they may have computers that it’ll be able to measure it all with that to New Orleans.

    And they will say in the future — a few years come up here and say why, don’t fix the line — yes, that it was in 1932 and 1933 because this is the (Inaudible) cutoff.

    So this idea of this new computer, we didn’t know that last year but we have now gotten this new measuring device and we can tell you with positive sentient, these people who just own lands in the states who thought they would boring on the river, states who had the river as their boundary no longer have that river as a boundary.

    It’s where the thalweg of that river happened to be when they opened the Glasscock Cutoff.

    Now that’s the reason for the wisdom of the ages, that’s the reason that — that this is a rule that has come down and applied (Inaudible) from Justinian through the civil law, through — into Brocton, to the common law and Louisiana is going against the (Inaudible) of its own Supreme Court in this very meddle, in this very meddle.

    There is a case of Esso versus Jones in which the State of Louisiana was a party, an active party.

    And then will — which involved Glasscock Cutoff, this area from Y, right around here, stopped there, it’s all — further it went because what was involved in that case, there were accretions up in the cutoff alone, this very cutoff, there were accretions up in this area and the — it will question whether the private Louisiana citizens only or the State of Louisiana and there was some more.

    So all those brought the litigation on in that case and as they said why, the private owners own the accretion until the water quit flowing and they comment citing St. Clair County versus Lovingston, their own State Supreme Court of Louisiana citing that case said, “Well, there (Inaudible) no one would be foolish enough to contend that the law of accretions and erosions was repeatable all to put out the cutoff.”

    They say — they said — I dare say, no one would do that.

    But the Supreme Court of Louisiana was mistaken because that — with almost concurrent the — of State of Louisiana had determined to ask for the fixing of a permanent line, limited to an area of three and a half miles.

    Landman Teller:

    So we say that — we’re here tampering or they’re asking that a rule be tampered with, which prompt the owners throughout this nation have lived with and know, and can learn, can determine what they own and what they don’t own.

    And these very parties did exactly that.

    This cutoff was constructed in 1932 or 1933.

    Louisiana made this place leased to Humble.

    In 1964 — no 1948, and when they described it, they didn’t described it as in the line over here between B and X.

    They didn’t do that because their job or knew that wasn’t the line.

    They described it as downstream along the Mississippi River flowing meandering thereof.

    And at the Humble — at the part of that — that’s where they’re leased to, that lease — then Humble got some leases from a number of people in the Mississippi side, 13 in numbers.

    And they got together and they confected an agreement and that said agreement which is the reason for this lawsuit.

    And they said on November — well, the first thing that happened was — Humble, this came out of the (Inaudible) as Humble — Humble put one of its experts on the stand.

    And he had developed that he had studied this problem and had made a report to his superiors on March the 31st, 1953.

    And in that report and I am virtually quoting it, he said that if — of course if you want to file the line below the foot of Glasscock Cutoff, you will have to get a current hydrographic survey.

    And he mentioned that it was the thalweg of the Mississippi River.

    Well, in November of 1953, some six-eight months later, and he also predicted that this line was going to — there’s going to be a development favorable to Humble because this was going to shift more to the west and that is an evidence before this Court as Humble’s Exhibit 10 and Humble’s Exhibit 11.

    Now, they did — they went and confected this agreement between themselves in November 1953 and on a recorded document which they recited.

    That whereas the thalweg or (Inaudible) of the stream of the Mississippi River, you know that that is the community line to buying the leases, called it from Louisiana and that Mississippi leases from the various Mississippi landowners.

    Which thalweg or rather a stream is subject to change from time to time pursuant to the natural action of the river and the accretion or erosion resulting there from?

    Now that’s Exhibit C4 to the complaint.

    So they knew what the law was, the law they deny it, can this Court to change.

    They went on to say that whereas after the line may change, that it may embarrass them in the operations.

    And this two or (Inaudible) Humble did on Carter, I don’t know what that — had anything to do with it.

    But the agreement was signed on behalf of Humble by Mr. Davis who was one of the — Mr. Marvin Hugh Davis, the top vice-president and on behalf of Carter by Mr. F. M. Darwin.

    And they said that that they were going to determine an operational line irrespective of the true boundary between the States of Louisiana and Mississippi at the tip, person, or any changes that may be brought therein.

    So, they picked it up as between themselves and that was a line to which they drilled when they elected from Carter they get to drill a well west of that line.

    So then it was the boundary line was, they didn’t have any difficulty in knowing.

    And so I think if you got a rule of law that people know what it is, that that’s a pretty good rule of law.

    That’s one that you can live with and that’s one that they were able to get along with.

    Now, there are several things that they — their exception number two while it wasn’t discussed much was that they have — except to the Master’s recommendation that the only — that this Court only decide the boundary issue.

    They want this Court to decide the litigation between the (Inaudible) family who happened to own Section 11 in Mississippi and Humble Oil and Refining Company.

    Now, we suggest that there is no jurisdiction in the original action to let — to determine the rights applied to citizens that the only way that this Court’s jurisdiction is derived from the constitution, it’s original jurisdiction, this can’t be either limited by the Congress nor extended by the Congress as far as the original jurisdiction.

    Landman Teller:

    And the appellate jurisdiction is — takes by the Congress certainly, not would govern private parties.

    Now, we have in our brief covered these features and I don’t think it’s really — I don’t believe it’s even — that the actual jurisdiction would exist in the Court to try a damage suit.

    You see, this is — that is the way that the matter originated.

    The (Inaudible) family who owns Section 11 sued Humble Oil Company, nobody else for a subsurface trespass for the taking of oil which they said underlay their property.

    They filed that suit in the United States District Court and in for the Southern District of Mississippi.

    That was done on November the 27th, 1962.

    The answers were filed by Humble, just any number of defenses, you can guess otherwise there’s a estoppel, there’s (Inaudible) Mississippi statute of limitations that this Court could have — would have to decide that — is whether its leased or whether it is not leased, there’s this any number of issues that — or in that part of litigation.

    Now then Louisiana filed their suit saying, “Wait a minute, the thalweg is not the line as these property owners saying that Mississippi — that we understand the State of Mississippi to believe.”

    But it’s a fixed line that exist over here by reason of this cutoff and so they filed a suit, they filed a suit on May the 13th, 1963.

    So the question is now whether — of course that — we recognize everybody, that’s an original action had between two sovereign states.

    Well, the line is where the thalweg happened to be in1932 or where it — where the live thalweg is now as it was when the states were admitted in to the Union.

    I mean, that’s what — what it was to begin with.

    Now, has it ever ceased to be?

    What has caused it to ceased to be within these latitudes?

    Byron R. White:

    Well, do you think the only issue in the case is whether it’s — there’s been an avulsion or not and if there —

    Landman Teller:

    Well, I must —

    Byron R. White:

    — there hasn’t been — if there hasn’t been — if we agreed with you that there has not been as the case over there and that (Voice Overlap) —

    Landman Teller:

    That — our opposition as far as this Court is concerned —

    Byron R. White:

    We don’t even need to —

    Landman Teller:

    — and that the only reason that those other private parties, they even made parties originally was to stay that litigation.

    Byron R. White:

    But you even — you even go further and say that the — where the thalweg was in any year including 1964 or any other year is immaterial.

    Landman Teller:

    That that is — we do not think that that is essential —

    Byron R. White:

    Well, is the (Voice Overlap) —

    Landman Teller:

    — to the — to this — the Court’s decision because after all it’s the same thalweg that divides Mississippi and Louisiana in every — in all other reaches of the river.

    I mean, it’s a live thalweg, that’s the way it is between the other states.

    And we see no reason why it’s essential for this Court to go beyond deciding that one issue.

    Where is the boundary?

    And once you’ve done that, of course that will — it would be like an alternative as far as this litigation is concerned because the party stipulate that if the present time the oil well is 950 feet east of the live thalweg.

    Byron R. White:

    Well, will it make any difference — would it make any differences between the State of Mississippi and the State of Louisiana as to in — as to where the oil well was?

    Landman Teller:

    We say not —

    Byron R. White:

    Didn’t say in 1954?

    Landman Teller:

    We say not Mr. Justice White but it does not between the state because whatever sovereignty they had exercised in the past has already been exercised.

    We can’t see where there’s any dispute between the two sovereign states that depends on a past or historical line.

    You know that the exact geographical position of a past or historical line.

    That’s happened — that once you get out of the — between the party, the litigants, between the Lew Carrols and Humble, is going to make some difference.

    It may make some difference if — if when the — if the State of Mississippi starts claiming severance taxes from Humble which have not been paid to it.

    But that won’t be between the — it won’t be that — anything between the State of Louisiana and the State of Mississippi that would make — depart or make any difference.

    Now we —

    Byron R. White:

    Well, what if Humble’s got some claim against Louisiana?

    Landman Teller:

    What?

    I couldn’t hear you Mr. Justice White.

    Byron R. White:

    Well, what if Humble then claims over against Louisiana?

    Landman Teller:

    Well, it was Humble who elected to pay them and the Eleventh Amendment of the constitution would just give Louisiana either the right to a —

    Byron R. White:

    I mean, what if they had waived it in the lease?

    Landman Teller:

    What?

    I couldn’t hear you.

    Byron R. White:

    What if they waived it in the lease?

    I mean, what if — what if there’s a provision where — what if Louisiana doesn’t have its sovereign immunity as against this lessee?

    Landman Teller:

    Well, it may be that Humble could recover from Louisiana but that wouldn’t be between Mississippi and Louisiana.

    Byron R. White:

    Well, if the — it’s a — (Voice Overlap) —

    Landman Teller:

    I say if they waived it, it may be that they could recover but I don’t —

    Byron R. White:

    The dispute between (Voice Overlap) —

    Landman Teller:

    As a matter of fact —

    Byron R. White:

    It’s a dispute between the two states to who’s entitled to the severance taxes from 1954 to today, isn’t it?

    Landman Teller:

    Well, that wouldn’t be between the two states as to who is entitled —

    Byron R. White:

    Well, both of them can’t get it out of Humble to say —

    Landman Teller:

    Well, other (Voice Overlap) —

    Byron R. White:

    Let’s assume that.

    Landman Teller:

    — its true Humble has already paid to the State of Louisiana and it could be that Mississippi could sue Humble.

    There is no question about that.

    Landman Teller:

    And in that sense, Humble could be subject to possible double liability.

    But I was trying to confine my answer to the fact that as between the two sovereign states, there is no dispute or controversy.

    And I will say this that the lease on file shows, you impose the question to me, supposed it have waived immunity.

    Well, they not only didn’t waived their immunity but they didn’t even give them a warranty lease.

    They just gave them a lease without a warrant so the — I — can I — I mean in the sense if the question is theoretical, they did not.

    That — I don’t think that lease waive an immunity because it was even without warranty.

    So now, we make the other position to the — we have the other point that with reference to the fixing of that line in 1954 that the Master — we do question, we say that that is not supported by the others, his fixing of that line.

    And I wish I did have the time to go into, but may be I — first, I don’t have the ability to do it but I need the — with the ability I have, I don’t have the time I would say then, to try to explain why we feel very comfortable that the thalweg was in fact west of this well location at the time it was drilled.

    And we have gone into that in our brief as exception number B, and I would say this to the test — this in a way a test to the correctness of it, they have — they didn’t respond to that, they didn’t do it, they didn’t undertake in any way.

    It’s a — there’s a yellow copy when we filed our exceptions.

    We attached to it and what the — a map along the exhibits.

    And that shows — actually the thalweg is the deepest part of the stream, it is the flowing stream.

    Coincidentally in 1952, and I say coincidentally are very fortunate that for the cause of truth.

    In 1952, there was a special governmental survey right in this area.

    Now the only reason it happened was because there was this — it was — they were in trouble then, navigation was in trouble and they had to send the boat joggling down there to dig out a canal on this — to scoop out some of the channel on the thalweg so as to get it free from navigation.

    And you can take this official governmental document here with the navigation charts which we have introduced into evidence.

    This shows, they were on October 3rd, 1952, the Government actually discontinued what had been known better for as Dead Mans Crossing, actually discontinued and put down below this well site a new light called Fairview Light, now that was the passing light.

    And if you will go by the governmental navigation charts, in all that you will find the thalweg was definitely to the west and the Master recognizes it.

    But he said that he thinks that maybe that was a temporary course.

    William J. Brennan, Jr.:

    Is that the one with the yellow circle you said going down?

    Landman Teller:

    Yes Your Honor, that is the one that the evidence showed and it goes through the dredged area there and the part in the river that’s where they threw the (Inaudible).

    It’s a much shorter, we go into all of the reasons why we feel that that is the proper line and if it — if the Court feels that it is essential to decide where the thalweg was, we feel that — I mean first, we say it was necessary.

    But it is necessary, we say that it — to be properly done, it would follow-up this line and this evidence.

    Now the other point we make —

    Hugo L. Black:

    Why do you say it’s not necessary?

    Landman Teller:

    Well, because as to the consequence we — don’t even said it was necessary, we said it wasn’t necessary as to the controversy between the states.

    Because we say that the Court will have determined that controversy when it says no to Louisiana that you have no permanent fixed line in this area but you have the same line that you always have.

    William J. Brennan, Jr.:

    The live thalweg?

    Landman Teller:

    The live thalweg and that is the point we make.

    The other point we make —

    Abe Fortas:

    That would mean — I wonder Mr. Teller that it — go back to the District Court following your thought as to what don’t happen and go back to the District Court and then that would have to be litigated there.

    Landman Teller:

    Yes Your — yes Mr. Justice Fortas.

    Abe Fortas:

    Okay.

    Landman Teller:

    The Lew Carrols (ph) suit is on filed on the District Court.

    Abe Fortas:

    I understand that.

    Landman Teller:

    And it would have — and it would be litigated there just as any other —

    Abe Fortas:

    The state is not a party to that.

    Landman Teller:

    The state is not a party to it, no states are party to it.

    And they — and the — while they say that Louisiana is a necessary and indispensable party, if they all are, they’re going to win the case.

    I can tell you that.

    Well, we don’t — because we don’t think that they are one but I mean if — because Louisiana will never be able to — I mean, the Lew Carrols (ph) will never be able to make Louisiana a party to that litigation which is filed in Mississippi.

    Abe Fortas:

    And what you’re saying — I beg your pardon Mr. Teller, I want to get this straight if I can, what you’re saying is that, the only issue that this Court ought to decide is the issue of theory of principle, that is to say, we — you had it the way you want it if this Court would say no to Louisiana’s request that we adjudicate the proper line to be the 1932 line.

    Landman Teller:

    And —

    Abe Fortas:

    But we just say no and then stop there, is that your (Voice Overlap) —

    Landman Teller:

    Well, I think it would go affirmatively and say that the proper line is the thalweg as it always has been — or the Mississippi river in this area.

    Abe Fortas:

    And then we don’t go into what is the line of thalweg as in —

    Landman Teller:

    Well —

    Abe Fortas:

    — the particular time.

    Landman Teller:

    I only suggest that because we didn’t think it was of substantial or necessary issue to the dispute between the two sovereign states.

    And that’s the only reason.

    It will be necessary and indispensable issue to other litigations which we know will come up.

    Now, the other point that we make and that is (Voice Overlap) —

    William J. Brennan, Jr.:

    Excuse me Mr. Teller, I managed (Voice Overlap) —

    Landman Teller:

    Yes sir, sure, (Inaudible).

    William J. Brennan, Jr.:

    Am I right in what you’re in effect saying is, if you were right that it’s a live thalweg that the severance forming between the two states, where it was located on a particular date may have a relevance to this private litigation but it has no relevance to any issue between the two states, is that it?

    Landman Teller:

    That is the point that we’ve make in the issue from the Court.

    William J. Brennan, Jr.:

    And therefore that — there is no reason for us to get into a location which is significant only to private parties and that’s what you say.

    Landman Teller:

    We suggest that in the exercise of the original jurisdiction of this Court, it should be confined to the controversy between the states as —

    William J. Brennan, Jr.:

    This is a — I take this position have to had another essential fact if that is that you are in agreement, that both states are in agreement as to where the thalweg was in 1964 and then every year thereafter.

    You have no current dispute as to where it is.

    Landman Teller:

    But we — there’s a stipulation filed at the —

    William J. Brennan, Jr.:

    Yes, okay.

    Landman Teller:

    — Exhibit C to the — stipulated October 26, 1964.

    Now I say one other thing for — to show how well we knew how to agree on thalwegs, we agreed on every other one except the 1952.

    William J. Brennan, Jr.:

    Right.

    Landman Teller:

    And I think that you’ll find —

    Byron R. White:

    And every year thereafter until 1964.

    Landman Teller:

    Yes.

    Well, of course that’s right but you’ll find that the reason that it wasn’t agreed on was not because Mississippi departed from the rationale and the rules that were applicable, but because Louisiana was unwilling to do so.

    They wanted to adopt a sailing line which was eliminated on the very date — which was the cause — let’s say, there being made and was eliminated on that date.

    Now the other point that we have to make and I — which will make an exception to and it’s covered in our briefs, I hope they’re able to — what is pertains to the courts.

    And we know that usually cause are assessed or divided equally but we have reason that we feel that all of the cause in this matter should be assessed again Louisiana and we have assigned those briefs.

    I certainly thank the Court for your kind attention.

    Earl Warren:

    Mr. Carmouche.

    Edward M. Carmouche:

    Thank you Your Honor.

    Your Honor, perhaps it would be best for me at this time to briefly state our position.

    Louisiana is not here today asking this Court to set a permanent boundary in every instance where the work of man has had something to do with it.

    We are not asking this Court, for example that the Government constructs a jetty and the forces of man and nature combined to accelerate accretion or erosion.

    We do — we’re not asking for a change in that route.

    We are not asking this Court to abandon the principle of law annunciated in St. Clair versus Lovingston and the land of White cases cited by our opponents.

    We believe that they are real and solid distinctions between those cases and the case at bar.

    We are saying first the law of accretion and erosion is perfectly good law unless you have an avulsion.

    And then accretion is not preferred by the law, if it is avulsion that is just as an honorable a principle of law as the principle of accretion and erosion.

    They are different and they occur in different situations.

    So we are saying that all you have to do is restrict the facts of St. Clair versus Lovingston to it’s own facts and apply the facts of this case which makes this an avulsion or analogous to an avulsion as has been done by this Court in the past.

    Now, St. Clair versus Lovingston is good law if you’re trying to figure out what happened in the old bend way.

    And I agree with my learned opponent when he said, what happened in the live river is something different with what happened up here.

    St. Clair versus Lovingston would give to the riparian owners in this area the accreted lands, the built-up lands as long as there is a thread or current going through the whole bend way, that’s not the situation in this case.

    If we had built an effective dam here and we have built an effective dam here, there would be no accretion or erosion in the whole bend way.

    It just simply couldn’t happen because it is the flow that causes the accretion.

    Edward M. Carmouche:

    Now, what we are dealing with is a line in the middle of the water, it is an imperceptible line, we couldn’t see where this thalweg was in the first place.

    We don’t know where it is today, we don’t know where it was in 1932 unless you could somehow get below that water and find out where that deepest trench, where that valley, where that main channel of navigation was.

    By its very nature, it is not perceptible.

    Nor are we dealing here to a build-up of land on the Mississippi side and an erosion on the Louisiana side.

    We’re attempting to locate a line in the water.

    So we say that there are two major distinctions as between the cases cited by our folks, St.Clair versus Lovingston and the cases that follow it and this case.

    First, St. Clair versus Lovingston and its follow-up cases were not dealing with boundary.

    We are dealing with boundaries here.

    Second, St. Clair versus Lovingston and these other cases were dealing with accretion to the bank.

    That is a build-up of land on one side of the river.

    We are not dealing with that here.

    Needless to say every point I made in my opening argument was a distinction between St. Clair versus Lovingston in this set of facts.

    That is, that the works of man intervene in such a drastic way as to completely reverse the forces of nature.

    Now let’s look at the equities.

    Earl Warren:

    Before you get to that, may I ask —

    Edward M. Carmouche:

    Yes sir.

    Earl Warren:

    — just one question that — at what point below the cutoff does the rule of avulsions and the rule of accretion and erosion begins —

    Edward M. Carmouche:

    Yes sir.

    That’s very easy.

    Earl Warren:

    — if that happen?

    Edward M. Carmouche:

    That is what we have determined as point X.

    Earl Warren:

    You have determined (Voice Overlap) —

    Edward M. Carmouche:

    This has been found by the Master.

    Earl Warren:

    Beg pardon.

    Edward M. Carmouche:

    That — the Special Master found that the results were measurable to point X.

    Earl Warren:

    I see.

    Edward M. Carmouche:

    Now, we are saying that from B to X is a completely measurable situation.

    And between these points, a fixed boundary should be in place and this will not open Pandora’s box, this should not give the court any trouble.

    Now let’s talk about (Inaudible) which is from X to Z.

    Sure we contend it in our brief that changes occurred there but we take the position that from X to Z the changes are immeasurable.

    Edward M. Carmouche:

    We can’t tell how much was done by nature and how much was done by man.

    So we are not asking that — from the thalweg be fixed in that area.

    We are asking the Court to apply the rule only to the measurable portion of this river and that is the foot of the cutoff to the foot of Dead Mans Bend.

    Byron R. White:

    Could I ask you one —

    Earl Warren:

    Can I ask just one more —

    Edward M. Carmouche:

    Yes sir.

    Earl Warren:

    — question and at what point below does the land start to accrete to Louisiana?

    Edward M. Carmouche:

    In here Your Honor, between X and Z.

    Do you remember Mr. Madden was talking about, you got accretion on the current banks, you get — on the concave portion, you have the erosion, they’re eating the way.

    Now, I believe that what I have to say about progress may help us in this particular question.

    On page 11 of our brief, the question was asked about a particular diagram there.

    What we are saying on page 11 is that if left to its own devices, the river will compensate for itself.

    If the forces of nature are left alone, the heavy portions of this land will be the river.

    And if that happens, the live thalweg should be the boundary.

    But what happened here was that because wholly and solely, due to the work of the United States Engineer, the current was diverted at right angles and now heads into Louisiana where it once headed into Mississippi.

    Now let’s see the effect of it.

    When the engineers made the Glasscock Cutoff, we didn’t gain the area to the west of the live thalweg in the cutoff, all the engineers took there was an easement.

    So Louisiana holds nothing in the live river from Y to B.

    As a result of this cut and the thalweg being placed over here, Louisiana owns nothing of Dead Mans Bend, and that remains the property of the State of Mississippi.

    As a result of the cut, every survey since 1765 shows that the current had been beating against Mississippi in this point at the rate of some 70 feet a year.

    So let’s talk about that one.

    If nature had been left alone, we would not be facing the Lew Carrols (ph) in this case because they not only would own the furniture, they wouldn’t own any land at all because in the 33 years, this is the last, between the building of this cut, if that river had continued going 70 feet a year against Mississippi, they wouldn’t be anywhere around.

    So we’re saying that what we’re asking for is complete equity.

    And it is not equity to say that a hoop hair bend Louisiana will begin again to see some accretion.

    We have lost our accretion here and we’ve lost our accretion in the bend below it, as a result of this cutoff.

    So you have reversed the forces of nature and Louisiana loses in two bends in a row instead of every other bend.

    Abe Fortas:

    Why did you take the year 1932?

    Edward M. Carmouche:

    1932 was the beginning of the dredging Your Honor in the Glasscock Cutoff.

    Abe Fortas:

    But the effect upon which you relied did not occur then, did it?

    Edward M. Carmouche:

    That is correct, Your Honor.

    Edward M. Carmouche:

    This work went on for some eight or nine years.

    The dredging itself, as I pointed out from my principal argument.During that time, you have some water going through the cut and you have some water going through the bend way.

    It was not until 1941 that more of the water began to pass through the cut than pass through the bend way.

    Abe Fortas:

    But it doesn’t —

    Edward M. Carmouche:

    But we must remember that while that was going on, you had two conflicting forces.

    Here, you had water heading towards Mississippi and water heading towards Louisiana.

    So its effect is almost neutralized during the period of the work.

    The rule of law, which we filed, is that this boundary should be permanently fixed as it was immediately prior to the avulsive act or the work of man.

    Abe Fortas:

    Are you talking about the — you’re referring to the avulsive act and as the date that first started (Voice Overlap) —

    Edward M. Carmouche:

    Yes, sir —

    Abe Fortas:

    — digging.

    Edward M. Carmouche:

    Yes sir.

    Abe Fortas:

    Now, would there be an effect on Humble’s claim on this lawsuit if the cut in 1941 rather than 1932?

    Edward M. Carmouche:

    No, sir.

    Louisiana — if you took part of going to Louisiana would win and so with others.

    It’s only when you get — in fact the Special Master plan that the thalweg actually crossed the well location after 1954.

    That this well was drilled in Louisiana, it was completed in Louisiana, and it was produced in Louisiana.

    Then he picks a date somewhere subsequent to that well being drilled and says the thalweg move passed it.

    Now that brings us to the rationale of the case.

    If this Court holds that this is a permanent remedy as existed prior to works of man, which could be any time prior to 1954, then you have no ancillary issues in this case.

    There’s not one single of the issue but if you hold that — as the Special Master did, that this well was drilled in Louisiana and produced in Louisiana but that at some later date because of this shift its now in Mississippi, you can see the manifold problems that will be created to the state and these are not private problems between the litigants, we’re collecting severance taxes right now on that well.

    We’re collecting (Inaudible) on that well.

    What was the point at which those rafters should have shifted over to somebody else?

    What was the point where we had to quit collecting our taxes?

    Remember gentlemen (Voice Overlap) —

    Byron R. White:

    Why (Inaudible)?

    Why —

    Edward M. Carmouche:

    Sir?

    Byron R. White:

    Let’s assume we decided — assume that we thought Mississippi was right on the avulsion point and that at some point the thalweg did shift over and the well get in the Mississippi, why is it an issue between the states as to when it did it, as to when that thalweg passed over the well?

    Edward M. Carmouche:

    Alright, Your Honor, today, there was one other governmental point —

    Byron R. White:

    When you both admits that in 19 — as of 1964, the well was — if it’s the live —

    Edward M. Carmouche:

    But sir, we — there was not (Voice Overlap) — not admit that.

    Byron R. White:

    I know but — if there’s — if that line is the live thalweg you admitted.

    Edward M. Carmouche:

    No, sir.

    Byron R. White:

    You still argue the live thalweg is to the east of —

    Edward M. Carmouche:

    All we have stipulated in this case now is that in 1964, that that thalweg then was west of the well location.

    Byron R. White:

    Alright, alright.

    Edward M. Carmouche:

    The Special Master found that it moved over pass the well some time in (Voice Overlap) —

    Byron R. White:

    But why is that an issue between the two states, as states — if the thalweg is the rule, what issue is left between the states as states?

    I grant you, there are issues between Louisiana —

    Edward M. Carmouche:

    As I pointed out, our taxing power Your Honor, a right to settle out.

    It was everyday Louisiana tells this company how many barrels of oil they can produce from this well.

    Now, another point I would like to get straight and this is really a problem in the case.

    We are not here fighting over an oil well.

    Its true there is one oil well located in the problem area, but we want this Court to realize that if you set a live thalweg, Louisiana will lose an entire oil field, that there are some 26 producing wells in this immediate area.

    The Special Master and all the witnesses found that the cost of this cut, it’s now eating at — into Louisiana more that 70 feet away.

    Those surface locations will begin dropping out.

    We will then have the problem — are those wells owned by Mississippians?

    Are they owned by citizens of Louisiana?

    Everyday is going to make the change.

    Not on this well, but on other wells in the fields located within 50, 60, and a hundred feet of the river bank, and all of those appear in the records Your Honor.

    Now, to finally summarize and close, apparently, the Master was bothered about three things in concluding that this was not an avulsion.

    First, was the element of time.

    The element of time in this case is no longer than the time element in which the United States Supreme Court in St. Louis versus Rotz said that an avulsion took place.

    So we can eliminate his worry about time whether this was rugged.

    I may also add that in terms of geologic term, in terms of the power of man to accomplish great jobs that what occurred here took only an instant.

    Second, the Special Master was worried about the perceptibility, yet where was the perceptibility in St. Louis versus Rotz where you had an island that just shifted a mile and a half down the river?

    That was not — no more perceptible then what went on here.

    Third, the Master and Mississippi seem to think that you had to have an actual change in the bed in order to have an avulsion.

    This Court has already held time and time again that you can have an avulsion where you just have a piece of land that’s slides off of my land and clops up against somebody else’s land.

    Edward M. Carmouche:

    There’s no change in the bend there.

    This Court has held time and time again that an avulsion can occur where you have a change in course or a change in the channel.

    We deal with the same thing.

    That we submit gentlemen is what happened here.

    I would like to close on a note of liberty, I never thought that I would live to appear before the United States Supreme Court arguing on one hand for the sovereignty of a state’s boundary and to maintain the state’s integrity and have the State of Mississippi on the other side saying, “Don’t worry about federal interventions.”

    Thank you.